Academic and activist perspectives on human rights

Reflections on the General Assembly’s Recent Resolution on Human Rights Treaty Body Reform

By Fiona McGaughey,

University of Western Australia

High Commissioner for Human Rights Navi Pillay. UN Photo/JC McIlwaine

After more than 30 years of discussions and reports on the human rights treaty system, the latest statement from the UN General Assembly is contained in its resolution on reform passed on 9 April. ‘Strengthening and Enhancing the Effective Functioning of the Human Rights Treaty Body System’ includes measures that should improve the efficiency of the system, but it is not self-evident that these measures will improve its effectiveness. Ultimately, the effectiveness of human rights treaties can only be improved by better promotion and protection of human rights for the people who seek to exercise them, and this broader aim of human rights treaties has not been adequately addressed by the UN.

Background

There are ten major UN human rights treaties (Australia is signatory to seven of these). Each has a committee or treaty body comprised of independent experts whose role is to monitor the treaty’s implementation. The main way in which they do so is by reviewing periodic reports from each state party and by publishing recommendations (called ‘concluding observations’). Many treaty bodies can also hear individual complaints from people whose rights have been breached and some can carry out inquiries.

In recent years, levels of ratification of human rights treaties have been high, in part attributable to the peer pressure brought to bear by the Human Rights Council (HRC) through the Universal Periodic Review (UPR) process that was introduced in 2006 and commenced in 2008.

The Long Road to Reform

Reform of the treaty body system has been protracted. The first human rights treaty, the International Convention on the Elimination of All Forms of Racial Discrimination, was adopted in 1965 and came into force in 1969; followed by the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights which were adopted in 1966 and came into force in 1976. In 1979 the Convention on the Elimination of All Forms of Discrimination Against Women was adopted and entered into force in 1981. Although by this time only four human rights treaties existed, cracks in the system were already beginning to appear. In 1988, the General Assembly passed a resolution on the effective functioning of treaty bodies which identified many of the challenges addressed again in the resolution of 9 April, such as the backlog of reports for consideration by treaty bodies, the burdensome nature of reporting requirements on states that ratify several treaties, and the need for adequate financial resources to support the work of the treaty bodies.

As a result of the 1988 resolution, Philip Alston was commissioned as an independent expert to make recommendations to improve the functioning of the human rights treaty system. In 1997, Alston published his final recommendations, including significant reform options such as consolidation of the treaty bodies. The consolidation recommendation appealed to the Office of the High Commissioner for Human Rights (OHCHR), which had been established in 1993 to help improve the ‘efficiency and effectiveness’ (emphasis added) of the UN’s human rights machinery. Better follow up mechanisms were also adopted by several treaty bodies.

Problems with the system remained, however, and after almost three years of consultations the OHCHR issued a comprehensive report in 2012 on strengthening the treaty body system.[x] In this report, as in previous assessments of the system, the key challenges identified included non-compliance with reporting obligations; backlogs in the consideration of States parties’ reports as well as individual complaints, capacity gaps, and inadequate resources. A detailed recommendation in the OHCHR report was to introduce a ‘comprehensive reporting calendar’ based on a periodic five year cycle, to be synchronised with the UPR process and with commonality between the reports due each year. Other recommendations included the universal adoption of the simplified reporting procedure; more focused concluding observations; institutionalised co-operation between treaty bodies and other UN entities; a review of nomination procedures for Independent Experts; a review of engagement with civil society; a standing national reporting and coordination mechanism; and greater visibility and accessibility of treaty bodies (including webcasting and videoconferencing) .

The Current Proposals

The proposals contained in the General Assembly resolution of 9 April resonate with many (although not all) of the recommendations contained in earlier reports, with a focus on simplifying and harmonising the system, improving the capacity of treaty bodies and states parties, and increasing the transparency of its processes. Cognisant of the independence of the treaty bodies and the sovereignty of states, the resolution generally ‘encourages’ the actors involved, such as the treaty bodies, states parties and the OHCHR, to take on board recommendations. The recommendations include increased take-up of existing practices such as the simplified reporting procedure and common core documents. An aligned methodology across all the treaty bodies is encouraged, and ‘increased efficiency, transparency, effectiveness and harmonization’ of the treaty bodies’ working methods. Word limits for reports have also been introduced.

A key proposal is that each treaty body meets for an additional two weeks per year to prevent further backlogs, and that as an exceptional measure any state with outstanding reports submit one combined report irrespective of how many are due. These measures are likely to have a significant impact, improving the efficiency of the system and addressing the current backlog. Recommendations from the 2012 report relating to videoconferencing and webcasting are also reflected in the latest resolution, although NGOs have expressed disappointment that webcasting is supported only ‘in principle’.[xi] While a harmonised reporting calendar was a key recommendation of the 2012 report, the current resolution merely invites the OHCHR and the treaty bodies ‘to work to increase coordination [and] predictability in the reporting process…with the aim of achieving a clear and regularized schedule for the reporting of State parties’.

All of these recommendations are primarily concerned with the efficiency of the process: streamlining, harmonising, and simplifying, rather than with its effectiveness per se. In addition, however, there are recommendations supporting transparent processes for the nomination and election of independent experts with ‘high moral standing and recognized competence and experience’. Several recommendations also relate to capacity-building for states in order to improve the implementation of treaty obligations, such as establishing a regional capacity-building officer role, providing training, and facilitating the sharing of best practices among states.

Another recommendation from the 2012 OHCHR report was that States parties would establish standing national reporting and coordination mechanisms to facilitate timely reporting and to coordinate follow-up to treaty bodies’ recommendations and decisions. In terms of effectiveness, this would appear to have been the most substantive recommendation given not only the delays in reporting, but also the neglected issue of states’ widespread failure to implement – or even outright rejection of – treaty body recommendations and decisions. A watered down version of the OHCHR’s recommendation found its way into the latest resolution, which ‘[r]ecognizes that some States parties consider that they would benefit from improved coordination of reporting at the national level’ and requests the OHCHR to provide technical assistance in this regard ‘at the request of a State party’.

Similarly, the 2012 OHCHR report made several references to civil society’s role in the treaty body process. It included a proposal to incorporate formal meetings for civil society during the official public meeting time and recommended training for civil society organisations. Neither of these proposals is included in the latest state-centric resolution. The main recommendation relevant to civil society condemns reprisals and intimidation of human rights defenders and urges states to prevent and eliminate such violations.

Effectiveness or Efficiency?

The current drive to simplify, consolidate and streamline the treaty body system is more about achieving efficiency than effectiveness. The implicit assumption is that if the process is less complicated and cumbersome, and less expensive, then it will also be more effective. But given that the objective of the system is to promote and protect the human rights, its effectiveness can only be measured by how well a treaty has actually been implemented by a state party, not on the basis of whether a state reports to a treaty body after a delay, or indeed at all. This is something that the treaty body strengthening process has not grappled with in any meaningful way. As former and current treaty body members noted in 2006:

The purpose of all forms of reform of the treaty body system must be the enhanced protection of human rights at the domestic level. Subsidiary goals, such as enhanced efficiency, must always be in service of this purpose. Reform should strengthen the capacity of rights-holders to enjoy their human rights and support States to carry out their obligations to implement fully these rights.

Given the chronic under-resourcing of the treaty body system and the serious delays in receiving and reviewing reports, it is understandable that the focus of the current resolution, and many of the reports leading up to it, is on the logistics of the system. Failure to report to a treaty body means that a state’s implementation of treaty obligations is not monitored and this is likely to impact on the treaty’s effectiveness. Similarly, if a backlog results in reviews based on out-of-date information, this is likely to impact on the effectiveness of the system. Efficiencies and effectiveness are certainly interrelated, but they are not one and the same.

Some of the current recommendations do relate to the effectiveness of the system. For example, appointing independent experts with relevant skills and expertise, and publishing good quality concluding observations, could render the process more effective, as could the capacity building recommended for states. Yet again, although states can receive clear, concise, good quality recommendations from eminently qualified and respected Committee members, and may have the capacity to implement treaty obligations, they may nevertheless choose not to do so. Australia is an example of a state that ratifies human rights treaties and recognises the authority of the committees to hear individual complaints, but which has repeatedly rejected the decisions of the UN treaty bodies.

The major gap in the current resolution, and in preceding resolutions and reports, is the failure to acknowledge that some states choose not to engage with the treaty body system, or they partially engage but do not grant full authority to the treaty bodies. Recommendations and decisions of treaty bodies are not in themselves legally binding and although the UN human rights system was designed so that states would monitor each other’s implementation of human rights norms, there are a number of reasons why this is often not the case, including states’ fear of reciprocity and the undermining of state sovereignty. The gap left by states’ failure in this regard is often filled by civil society organisations. Such organisations play a critical role in state reviews[xvi] – as Wiseberg argues, ‘the intergovernmental human rights machinery would grind to a halt were it not fed by the fact-finding of human rights NGOs’.[xvii]

Civil society organisations are instrumental in ensuring the ‘effective functioning’ of the UN treaty body machinery and yet their role in achieving effectiveness is not addressed in any detail by the General Assembly in its most recent resolution. The role of civil society, often a contentious one for states, and its impact on effectiveness, remains to be grappled with successfully. The resolution of 9 April 2014 might be the first step towards a better human rights treaty system, the next step needs to address the broader problem of what is required to make the UN human rights machine function effectively.

The final version has not yet been published by the UN but it is expected to be the same as the draft resolution. Strengthening and enhancing the effective functioning of the human rights treaty body system, GA Res A/68/L.37, 68th sess, 9th April 2014.

The Office of the High Commissioner for Human Rights notes a 50% increase in ratifications from 2000 – 2012 on six core treaties. The total number of ratifications was 1,953 as of May 2012. United Nations reform: measures and proposals, UNGAOR, 66th sess, Agenda item 124, UN Doc A/66/860,(26 June 2012),18.

Reporting obligations of states parties to international instruments on human rights and effective functioning of bodies established pursuant to such instruments, GA Res 43/115, 75th plen mtg, (8th December 1988).

High Commissioner for the promotion and protection of all human rights, GA Res A/RES/48/141, 85th plen mtg, (20 December 1993).

The UPR now provides a regular review by one body (the working group of the HRC) of all human rights obligations in each state under review, perhaps providing the unified approach lacking under the treaty body system, but it has not replaced the treaty bodies and arguably it has distinctive problems related to the fact it is a political, state-based mechanism.

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